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Report on this morning's Prop. 64 oral argument and some thoughts on retroactivity
My sincere and eternal thanks to the reader who attended this morning's oral argument in the Petrini Van & Storage case, and provided this detailed summary:

Justice Sims expressed awareness that whomever loses the decision by the Third District Court would petition for review before the Supreme Court, which counsel for petitioner acknowledged.

The sole issue addressed was whether Prop. 64 was applicable to pending cases. The focus was on whether it affected a vested right. Petitioner contended that the right to bring a representative action was purely statutory, and did not exist at common law. Tedesco contended that the substantive rights in this action, the prevailing wage laws, were not affected by Prop. 64.

Each of the three Justices suggested that the matter might be returned to the trial court to cure the standing defect by allowing the Union or a plaintiff with a cognizable injury to substitute in as plaintiff. Tedesco said that is a different lawsuit, the public withdrew this plaintiff's right to proceed with this suit by enacting Prop. 64.

Gauger, attorney for real party plaintiff/respondent Munoz, contended that the trial court's tentative ruling was well reasoned. Munoz had arranged his affairs to pursue a Business & Professions Code section 17200 suit. Justice Cantil questioned how an uninjured plaintiff could "arrange his affairs". Gauger responded that he did so by deciding to file individually, as a representative of the public, rather than as the carpenter's union, to make sure that the carpenters are paid the prevailing wage. He asked that the stay be lifted, and Munoz be permitted leave to amend, or alternatively, that another individual replace Munoz as the plaintiff.

Justice Sims interjected that everyone in the lawsuit has a substantive right at stake. He stated that this was "just a procedural standing issue". It was very hard for him to believe that the people of California cannot change standing in the middle of a suit. He read portions of Prop. 64, which referred to cases being "prosecuted", stating he understood the use of the word "prosecuted" to meant that the voters intended to change standing midstream. If Prop. 64 was only intended to apply in the future, the drafters would not have to say "and prosecuted", just writing "filed" would be enough.

Justice Davis inquired at the end of the argument, whether the case could be remanded to secure the cooperation of a public prosecutor. Tedesco responded that the prosecutor has not filed, and the right to bring a suit, includes the right not to sue.

Conclusion:

It appears that the Third District will find that Prop. 64 is procedural only, and does not affect substantive rights, and it was written to reflect an intent that it be applied to pending cases. The Court may reverse and remand, to permit plaintiff leave to amend.

Here are my initial impressions based wholly on the above summary. I'm not sure that the language of Prop. 64 that Justice Sims identified means the electorate intended that the amendments apply to pending cases. Defendants have relied on certain words in Proposition 64’s preamble to support an inference of retroactivity, including these:

“It is the intent of California voters in enacting this act that only the California Attorney General and local public officials be authorized to file and prosecute actions on behalf of the general public.” Id. §1(f) (emphasis added).

However, Proposition 64 also contains language suggesting that it was intended to apply prospectively only, including the following:

“It is the intent of California voters in enacting this act to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution.” Prop. 64, §1(e) (emphasis added).

“This measure prohibits any person, other than the Attorney General, from bringing a lawsuit for unfair competition unless the person has suffered injury and lost money or property.” Prop. 64, Analysis by the Legislative Analyst (emphasis added).

Proposition 64 “[a]llows only the Attorney General, district attorneys, and other public officials to file lawsuits on behalf of the People of the State of California to enforce California’s unfair competition law.” Prop. 64, Argument in Favor (emphasis added).

Read in context, any “retroactivity” language in Proposition 64 is ambiguous, at best, which means the Proposition was not intended to apply retroactively. As the Supreme Court has put it, “‘a statute that is ambiguous with respect to retroactive application is construed … to be unambiguously prospective.’” Myers v. Philip Morris Cos., 28 Cal.4th 828, 841 (2002) (quoting INS v. St. Cyr, 533 U.S. 289, 320-21, fn.45 (2001)) (emphasis added); see also id. at 843 (noting that Evangelatos requires an “unequivocal and inflexible statement of retroactivity”). Here, as in Myers, “the time-honored presumption against retroactive application of a statute … would be meaningless if the vague phrases relied on by [defendants] were considered sufficient to satisfy the test of a ‘clear[] manifest[ation], or an ‘unequivocal and inflexible’ assertion of … retroactivity.” Myers, 28 Cal.4th at 843 (quoting Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946 (1997); Evangelatos v. Superior Court, 44 Cal.3d 1188, 1207 (1988)).
- posted by Kimberly @ 1:27 PM